3 C.L.R. 1984 April 26 [LORIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION SA ENGINEERING MARKETING CO.., Applicants, v. THE REPUBLIC OF CYPRUS, THROUGH THE ACCOUNTANT-GENERAL PRESIDENT OF THE TENDER BOARD, MINISTRY OF FINANCE, Respondents. (Case No. 471/82). Time within which to file a recourse—Doubt whether applicants had sufficientnoticeof thesubjudice decision enablingthem tovindicate their rights—Must be resolved in their favour—Article 146.3 of the Constitution. 5 10 15 20 Tenders—Successful and unsuccessful tenderer—Must be informed of the decisionof the Tender Board—Regulation 42 of theGovernment Store Regulations—Applicants failing to submit a proper tender—Reasonably open to the respondents to reject their tender. This was a recourse against the decision of the respondents rejecting applicants' tender for the supply of surveying instruments and other materials for the Department of Lands and Surveys. The decision rejecting applicants' tender and accepting the tenders of the interested parties was taken on the 3rd July, 1982 and was posted on the notice board on the next day. On the 6th July 1982 the applicants applied for a reexamination of the matter and the respondent replied by letter dated 24.8.1982. Regulation 42 of the Government Store Regulations provides that the successful and the unsuccessful tenderer must be informed of the decision of the Tender Board; and though applicants were conversant with the rejection of their tender as early as 6.7.1982 they were officially informed 393 SA Engineering and Marketing Co. v. Republic
(1984)by respondents by means of a registered letter dated 9.8.1982 which allegedly reached them by the end of August. The recourse was filed on the 5th of August, 1983. Under para. 9 of the invitation of Tenders "no Tender shall be taken into consideration unless all the terms of the invitation are complied with" and it was abundantlyc lear from para. 6of the invitation of tenders that delivery of the articles in question should be CIF Cyprus whereas the tender of the applicants, as admitted by them, was FOB Cyprus. 5 On the Questions: 10 (
- a)Whether the recourse was out of time; (
- b)The merits of the recourse. Held,that as there isa doubt, and such doubt must be resolved in favour of the applicant (see Neophytou v. The Republic, 1964 C.L.R. 280 at p. 290), whether the applicants received 15 sufficient notice to enable them to vindicate their rights through the legal process before the 24.8.1982 when the relevant decision was communicated by the respondents to the counsel for applicants, the matter must be resolved in favour of the applicants as even if the letter was received by the applicants on 24.8.1982 20 that would have been within the time limit provided by Article 146.3 of the Constitution; and that, therefore, the preliminary objection of the respondents as regards the time limit which goes to the jurisdiction of this Court is hereby dismissed.
(2)That the respondents' invitation for tenders was not 25 complied with as it ought to; that in substance, therefore, the applicants failed to submit a proper tender and the one submitted could have been ignored, whereas the tender of the applicants was properly examined by the respondents, who after exercising their discretion properly, reached a decision which 30 was reasonably open to them; accordingly the recourse must fail. Application dismissed. Cases referred to: Holy See of Kitium v. Municipal Council of Limassol, I R.S.C.C. 15; Megalemou v. Republic
(1968)3 C.L.R. 581; Ploussiou v. Central Bank of Cyprus
(1982)3 C.L.R.
- 394 35 3 C.L.R. SA Engineering and Marketing Co. >. Republic Recourse. Recourse against the decision of the respondents to award the tenders for the supply of surveying instruments and other materials for the Department of Lands and Surveys to the interested 5 parties instead of awarding the tenders to the applicants. 10 Ch. lerides, for the applicants. A/. Photiou, for the respondents. /V. Panayiotou, for interested party No.
- Ph. Valiandisfor L. Papaphilippou,for interested party No.
- Cur. adv. vidt. LORIS J. read the following judgment. Following the invitation for tenders for the supply of surveying instruments and other materials for the Department of Lands and Surveys, which was published in the Official Gazette on the 5th April. 1982, the 15 applicants as well as the interested parties, submitted relevant tenders. The tender of the applicants was submitted on 22.5.
- As it appears from para. 3of the opposition the respondent Tender Board, has decided to reject applicants* tender and accept the 20 tenders of the two interested parties on 3.7.
- Their said decision was posted on the Notice-board on the next day that ison 4.7.
- On 6.7.82 the applicants submitted, to the President of the Tender Board Nicosia, a letter (which appears in appendix A of 25 the written address of the respondents) by virtue of which they were substantially applying for re-examination of their case. A letter of even date was also addressed on behalf of applicants by their advocate which appears in Appendix "I*cf the written address of the applicants. The respondents replied to the coun30 sel for applicants by virtue of letter dated 24.8.82 (appearing in appendix II attached to the written address on behalf of the applicants). It is apparent from the prayer in the present recourse that the applicants impugn the decision of the respondents contained in 35 the aforesaid letter dated 24.8.82 praying for "(a) a declaration of this Court lo the effect that the decision in question is null and void and of no effect whatsoever. 395 Lorfs J. SA Engineering and Marketing Co. v. Republic
(1984)(
- b)a declaration of the Court that the decision of therespondents to make the award for the tenders to interested parties 1and 2 is null, void and of no effect whatsoever. (
- c)a declaration of the Court that the decision of the re- 5 spondents referred to aboveis null and void and ofno effect whatsoeverbeinginexcessand/orabuseofpowers andcontrary tothegeneralprinciplesoflawand/or the Constitution." The applicants based the present recourse on the following 10 grounds of Law. "1. The consideration of the tenders took place in a manner contrary totheprinciplesoffree competition and/orinan irregular and/or invalid manner. 2. The decision is not duly reasoned. 15 3. Thedecisionwastakenintheabsenceofsufficient inquiry, without ascertainment ofthefull facts and withouttaking into account all relevant considerations. 4. Thedecision wastaken ina mannerinconsistent with the right to equal treatment safeguarded by Article 28.1 of 20 the Constitution. 5. The decision was taken in excess of power in that no proper inquiry of theApplicants' tender had taken place and without the Respondents providing the opportunity to the applicants tomake their representations toexperts 25 who could evaluate their tender. 6. The decision was taken in abuse of the Respondents' powerinwilfully favouring theInterested Partiestowhom they awarded the tender. 7. The respondents didnot exercisereasonable discretion in 30 awarding the tender." Therespondents filed an opposition and in para. 1 thereof allege"that thepresent recoursehasbeenfiled outoftime". Jn the remaining paras of their opposition the respondents allege that the decision in question was reached at lawfully and cor- 35 rectly after full and proper inquiry of all therelevantfactsand circumstances of the case. 396 3 C.L.R. SA Engineering and Marketing Co.v. Republic Loris J. FollowingdirectionsofthisCourt,theapplicantsfiled written addressesto whichtheyhaveattached severalappendiceswhich appear in the file. The respondents filed their written address attachingtheretoaletteroftheapplicantsdated6.7.82addressed 5 to the respondents which is marked Appendix A. Counsel appearingforinterestedpartyNo. 1,namelytheCyprusPharmaceutical Organization of Nicosia, stated before me on 22.12.83 that hewasnot intendingeithertofile an opposition or written addresson behalfofhisclientandthathewasadoptingthestand 10 on the matter taken by the respondents. Counselfor interested partyNo.2,namely,P.C.OrinosLtd., filed written address on their behalf. Written address in reply wasalsofiled bytheapplicants. On 10.4.84whenthiscasewas fixed for clarification and evidence, learned counsel appearing 15 for applicants had the opportunity of making oral clarifications whichappearonrecordand Ineednotrepeatthematthisstage. Learned counsel for respondents made oral clarifications in connection with certain matters pertaining this case and also produced twodocuments: (a)therelevantpageoftheminutes 20 oftheTenderBoardwhichtookthesubjudicedecisionon3.7.82 (exh. 1)and(
- b)adocumentevidencingthepostingofaregistered letterdated9.8.82addressedbytherespondentstotheapplicants mforming them that their said tender was rejected. BeforeproceedingintothemeritsofthecaseIintendtoexami25 nefirst the crucial issue of time, the strict observance ofwhich rendersa recoursejusticiable (The HolySeeofKitium v. Municipal CouncilofLimassol 1R.S.C.C. 15)andit hastobeelucidated evenbytheCourt actingexproprio motu (Megalemou v. The Republic
(1968)3 C.L.R. 581). 30 Learned counsel for the respondents submitted that thedecisiontakenbytherespondentsonthe3.7.82cametotheknowledgeof applicants at least as early as 6.7.82by whatever meanscounselsubmitted-isimmaterialandthiscanbeclearly inferred from theletteroftheapplicantsthemselvesdated6.7.82whichis 35 attachedasappendixAtothewrittenaddressoftherespondents, wherein, inter alia, it isclearly stated that "we understand that one of main reasons for rejecting our offer " Counsel for respondentsmaintained that oncetheapplicants were aware at least asfrom the 6.7.82that their tender was rejected, thendefinitely therecoursewhichwasfiled on 5.11.82wasout oftime. 397 Loris J. SA Engineering and Marketing Co. τ. Republic
(1984)Learned counsel appearing for the applicants submitted re lying onPloussiou v. CentralBank of Cyprus
(1982)3 C.L.R. 250 that the burden of establishing the preconditions for the setting in motion of the time provisions of Article 146.3 of the Con stitution rests on the decision-taking body and maintained that 5 the respondents do not even allege that the applicants were in formed that their tender has been unsuccessful, as they ought to have been informed, pursuant to regulation 42 of the Govern ment Stores Regulations. On the contrary νcounsel for appli cant submitted - respondents conceded that the only notice 10 emanating from them,to applicants, on the issue of rejection of their tender was posted as late as 9.8.
- In this respect it must be noted that counsel for respondents, inspite of his insistence that the applicants were conversant with thecontents of thedeci sion of the respondents rejecting applicants' offer as early as 15 6.7.82, conceded that the written notice to that effect was only posted to the applicants on 9.8.82 (exh. 2) whilst it was maintai ned by counsel for applicants that the aforesaid letter was recei ved in fact by the applicants "by the end of August at least". Regulation 42 of the Government Store Regulations provides as follows: 20 "
- The name of the successful tenderer and the prices at which the tender has been awarded shall be announced by an appropriate notice on the respective Notice Board. The successful and the unsuccesful tenderers shall be in- 25 formed accordingly." It is abundantly clear from the provisions of the above cited regulation that whilst thenameof the successful tenderer andthe prices at which the tender has been awarded shall be announced by appropriate notice onthe respective Notice-board the succes- 30 sful as well as the unsuccessful tenderer "shall be informed ac cordingly." It is also clear from the facts before me that in spite of thefact thatapplicants were conversant with the rejection of their tender at least as early as 6.7.82 (as it transpires from appendix A to the written address on behalf of the respondents) 35 they have not been so infoimed by the respondents, such in formation having been forwarded to them officially by the re gistered letter of 9.8.82which might have reached therespondents as alleged at least by theend of August
- In any event, as Iam in doubt, and such doubt must beresolved in favour of the 40 applicant (Neophytou v. The Republic, 1964 C.L.R. 280 at p. 398 3 C.L.R. SA Engeneering and Marketing Co. v. Republic Lorb J. 290), whether the applicants received sufficient notice to enable them to vindicate their rights through the legal process before the 24.8.82when the relevant decision wascommunicated by the respondents to the counsel for applicants, I am duty bound to 5 resolvethe matter in favour of the applicants aseven ifthe letter was received by the applicants on 24.8.82 that would have been within the time limit provided by Article 146.3 of the Constitution. Therefore, the preliminary objection of the respondents as regards the time limit which goes to the jurisdiction of this 10 Court is hereby dismissed. Turning now to the substance of thiscase Ifeel duty bound to mention straight away that under para. 9 of the invitation of Tenders "no Tender shall be taken into consideration unless all thetermsofthe invitation arecomplied with"and itis abundant15 lyclear from para. 6of the invitation of tenders that delivery of thearticles in question should beCIFCyprus whereas the tender of the applicants, as admitted by them, was FOB Cyprus. In this respect I have noted that applicants havesubmitted in para. 3 of their written address in reply that "this is not a material 20 reason because it was very easy to calculate the difference of expenses between FOB and CIF". With respect Icannot agree with this submission of learned counsel for applicants, because as learned counsel for interested party No. 2has indicated in his written address "It is not only the cost of the insurance and 25 carriagebutalsothe riskswhich follow thegoods as FOBimplies that ownership passes upon shipment, whereas in CIF cases the ownership passes on arrival." From the above it is abundantly clear that the respondents' invitation for tenders was not complied with as it ought to; in 30 substance, therefore, the applicants failed tosubmitapropertender and the one submitted could have been ignored, whereas the tender of the applicants was properly examined by the respondents, who after exercising their discretion properly, reached a decision which was reasonably open to them. 35 In view of the above 1 do not feel that I should deal with the present caseany further. The recourseis accordingly dismissed and it isvery reluctantly Ihave reached thedecision not to make any order as to the costs thereof. Recourse dismissed with no order as to costs. 399